OUR PERSPECTIVES

How to Protect and Monetize Your Intellectual Property

Intellectual property is the core of your business. Your ideas, and the way you build and iterate them, are what set you apart from other companies. For that reason, it’s essential that you own those ideas and be prepared to defend them against infringing use.

Failing to protect the fruits of your labor doesn’t just leave your ideas vulnerable to competitors; it can also curtail your business’s growth. A lack of robust IP protection can make it difficult to raise funds, for example—potential lenders and investors may view the lack of protection as a sign of carelessness toward your business’s interests or as evidence that your assets are less than what you claim. No matter what your ideas are or how you plan to monetize them, adopting a smart approach to securing IP is essential.

There are three types of intellectual property protections that creatives and businesses need to be aware of: copyrights, trademarks, and patents. Each one applies to different kinds of IP and offers different types of security. Below is a general overview of each; an attorney can help you determine how to best leverage and secure them for your needs.

Copyrights: Protecting Original Work

Copyright is the exclusive legal right of the owner of intellectual property to reproduce, distribute, and publicly display their work. Copyright protects the owner of a work from unauthorized duplication or use of that work, and it’s one of the most fundamental and time-tested ways of protecting IP.

It applies automatically to anyone who creates an original work, but registration with the U.S. Copyright Office is a prerequisite for many mechanisms you may need to defend your ownership and achieve maximum protection. Once established, copyright remains with the original owner until 70 years after their death (or longer in certain circumstances).

Despite its strong reputation for protection, copyright does have important restrictions. A wide range of tangible works, such as software, art, designs, and literature, are eligible for copyright protection, but works created for promotion and advertising—slogans or brand names, for example—are not covered by copyright.

 

In addition, as recent high-profile lawsuits involving Katy Perry and Led Zeppelin have illustrated, copyrights are subject to challenges. In both cases, the artists faced charges of alleged copyright infringement based on minute aspects of their work. By enlisting the help of legal counsel early on, you can substantially increase the likelihood that your ideas are safeguarded from both unfair use and challenges from competitors.

Trademarks: Securing Brand Assets

Trademarks protect the assets, such as slogans, symbols, and logos, that help set your business apart from others. These marks allow consumers to easily distinguish your brand and your products from competitors; essentially, trademarks are used to keep other companies from co-opting your brand recognition. Trademarking your logo and brand name, for example, is essential for building a strong relationship with consumers, developing brand loyalty, and driving sales.

Trademarks are granted by the United States Patent and Trademark Office (USPTO), and it’s best to have an experienced attorney assist you with applying for one. They can save you a great deal of time and expense by thoroughly searching for similar marks already in use, ensuring that your business and marks are portrayed accurately in your application, obtaining approvals in multiple business categories, and responding to any refusals from the USPTO.

Patents: Safeguarding New Inventions

The most complex form of IP protection, patents are grants of property rights to an inventor issued by the USPTO. Generally, each patent lasts for 20 years, and it gives the inventor the right to exclude others from making, using, or selling that invention in the United States. There are three different types of patents covering everything from new manufacturing processes to new varieties of plants.

Applying for one requires in-depth knowledge of patent law, USPTO procedures, and any technical data relevant to the invention being patented. For these reasons, you’ll need to work with a registered patent attorney to interface with USPTO officials and prosecute the patent application. That’s the best way to ensure not only that your application will be granted, but also that the resulting patent will provide adequate protection for your invention.

SETH KAPLOWITZ
Seth has over 20 years of experience, as an attorney practicing at international law firms and as in-house counsel to an international private equity firm. Seth has advised on, structured and executed commercial transactions throughout North America, Europe, Asia, Africa and South America, both as a legal practitioner as well as an equity and debt holder.
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